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Still Waiting For Divorce Reform

10/04/2017 12:01
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Next month sees the annual pageant of the Palace of Westminster's State Opening of Parliament. Alongside the traditional regal razzamatazz comes the Queen's announcement of a list of the government's plans for new laws.

Like others in my field, I've stopped holding my breath but try to hold a glimmer of hope that family justice issues will be addressed. The introduction of 'no fault' divorce, for example.

It hits headlines from time to time, most recently when The Court of Appeal refused to allow 'desperately unhappy' Tini Owen to divorce her husband, Hugh. She had alleged the marriage had broken down and that it was a loveless and unhappy marriage. Yet because Mr Owens challenged the assertion, it was left to a judge to decide who was right. In his view, Mr Owens was, and so the divorce was denied on the basis that being in an unhappy marriage was not a ground for divorce. It's an extreme case, perhaps, but the underlying issue here is that the law as it stands requires one person to find blame with the other in order to get the divorce they both want.

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We know from experience that very often a couple that has decided to separate just wants to get on with it, so they can make a fresh start. Yet outdated laws that mean someone has to be proved at fault creates a bidding war which then often escalates to a full-blown courtroom battle.

Put simply, the current legal need to prove a spouse's 'unreasonable behaviour' itself fuels bad feeling between a couple.

Now new research from The Nuffield Foundation has identified that courts actually create conflict and encourage litigation. The research is in its early stages but for anyone who's worked in family law, or has been through a divorce, it's a case of 'tell us something we didn't already know.'

As the organisation that 35 years ago founded the concept of family mediation, a means of a couple settling differences and 'moving on' with parenting, money and property issues without recourse to a legal fight, we've lost count of the number of times we've pointed this out to government and the judiciary.

We've lost count of the number of missed opportunities... headline cases that could trigger a popular modernisation of the law.

True, legislation is occasionally presented to Parliament, but such Bills are - as in the case of Richard Bacon MP's failed No-Fault Divorce Bill last year - introduced by individual MPs, under the Ten Mniute Rule or as Private Member's Bills. So they're at the mercy of the vagaries of the Parliamentary system that affect any privately introduced Bill. It can be 'talked out' of time, or find itself so far down the Westminster agenda it never gets anywhere.

It doesn't have to be this way. If the government took the opportunity to bring forward its own legislation for no-fault divorce, time would be allocated and the Bill would be passed.

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It's worth pointing out that, notwithstanding the current archaic laws surrounding divorce, separating couples always have the option not to choose a court-room route and use family mediation instead. Many do so. Our non-profit mediation providers deliver 30,000 mediations each year. But the scale could be so much higher, if only the traditional combative divorce mindset were addressed by law change.

This is a huge issue. Over 100,000 couples divorce each year. For each and every adult involved, let alone the children, the stress, time and expense involved is staggering.

For Ministers it's not a question of the volume of people affected, or the impact of legislative change. That's undeniable. It's one of will. It's high time for Ministers to take long-awaited steps to divorce reform.

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